Supreme Court sets 2005 cut-off on women right to ancestral property

The Supreme Court held that on September 9, 2005, father would have been alive for the daughter to claim right as a co-sharer with that of the male siblings. The Court made it clear that the amendment made to Hindu law in 2005 will not in itself provide right to daughter a share in the property where the father died prior to the enforcement of the amendment. The said ruling will put a limit on the women’s right asking equal share as that of male members in the ancestral property. The Court also stated that the altered provisions under the Hindu Succession (Amendment) Act, 2005 will not have retrospective application.

Originally in the Hindu Succession Act, 1956 provision for the daughter to claim inherent right in the property of ancestors was absent. Women had only the right to claim sustenance from the joint Hindu family. After the amendment in 2005, this discrimination was removed though some clarification persisted. But at present, the judgment added yet another limitation on the women’s right to ancestral property. As of now, the women had no right over the property if the property was partitioned or alienated prior to 20th December, 2004. This judgment made it compulsory that the father of the woman should have been alive at the time of implementing  this amendment.

The bench consisted of Justice Anil R Dave and Justice Adarsh K Goel who were disposing off the appeals initiated from the orders of various High Courts. The Court observed that the date of on which the Act commences, right of a daughter as the coparcener also begins. The Court also overruled order of the High Court which provides that aim of this gender legislation is to give equal rights to woman in their ancestral property which is to have retrospective application. The court struck down the argument that woman gets right by birth irrespective of the date on which her father died and the shares of each party is therefore required to be redefined.

Adv. Jewel Panicker